What is parental authority?
Updated: Apr 2
Only biological bonds last? Not quite so. The joint exercise of parental authority creates a legal bond between parents, a bond that will remain, even if the marital relationship breaks down, until the child reaches the age of majority.
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Belgian Civil Code refrains from defining parental authority (also called parental responsibility), but lists its components: the health, education, training, leisure and religious or philosophical orientation of the minor child (Article 374 § 1). Parental authority does not refer to daily actions, when and what the child eats, discipline or bedtime, although a certain coherence between parents, between their habits and values, is beneficial for the child's harmonious development. Parental authority, the power to make the important decisions in the child's life, is exercised jointly by both parents, even if they no longer live together. It is exercised jointly when the parents house the child equally, but also when the primary residence is with one parent and the secondary residence with the other (e.g. two weekends a month and half of the school holidays). The type of residence chosen by parents or decided by a judge does not therefore affect the exercise of parental authority.
The Code recognises the practical difficulties of parental decision-making, by stating that "in the absence of agreement, the father or mother may refer the matter to the youth court" (Article 373). This article concerns parents who live together, whether married or not. Following this referral, "the court may authorise the father or the mother to act alone in respect of one or more specific acts". Article 373 is also applicable to separated parents.
One can hardly imagine parents who live together asking the judge to decide whether their child should be enrolled in school A or school B, allowed to travel abroad with one of the parents, start medical treatment or be baptised. Marital mediation is a better alternative in these cases since litigation has a bombshell effect on interpersonal relationships.
When parents separate, keeping the lines of communication open is key. Mediation is a communication exercise itself, although not always an easy one. Parents consent to it for practical reasons, such as flexibility, speed and as it is relatively inexpensive. The choice of school gives sometimes rise to disagreements, especially when one parent favours traditional education and the other the new pedagogies. During one mediation, two separated parents were able to openly express their concerns regarding their child's education. A too modern pedagogy could lead to failure to graduate, which, for the child's father, was synonymous with failure in life. For the child's mother, traditional education meant the child's loss of spontaneity and autonomy. With the mediator's help, these parents realised that they were not enemies and began to work together to find solutions for their child's future education.
Separation and divorce increase the cost of living for both parents who lose the synergies of living together. The budget for the child's extracurricular activities also suffers. During an online mediation, the mother explained that she neither had the resources, nor the time to accompany the child to football training during the week when the child lived with her, which was difficult for the father to accept. The mother felt powerless because of her demanding job and difficult work schedule. The father could understand her and they both agreed to only one extracurricular activity per week.
In the context of another separation, the father insisted that the mediation agreement state that the mother would vaccinate the child against a number of childhood illnesses that they had struggled to agree on. Through discussions facilitated by the mediators, both parents succeeded in reaching an agreement. The mother, who favoured alternative treatments, agreed to bear the cost of the child's visits to the homeopathic doctor, while the father consented to the mother's wish to consult this doctor for the child. They would continue to guide the child even after a painful separation.